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Ely, Counselor at Law
Category: Consumer Protection Law
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A CPLR Article 78 proceeding has a 4 month statute of limitations,

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A CPLR Article 78 proceeding has a 4 month statute of limitations, starting from the date the decision (that's being questioned in the proceeding) becomes final and binding, or, when the Plaintiff realizes he's been harmed.

What if the decision is whether to pave a road, and that decision is made once per year. Can an Arr. 78 proceeding be brought every time the decision is made not to pave, i.e. once per year?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

The answer is no. IF the decision is about the same issue (literally, the same road, or simply a different section of the road but the material facts are the same), then once the matter has been decided, the Court will not hear it again.

This falls under the doctrine of res judicata. It states that once "a party has had a full opportunity to litigate a particular issue, he cannot reasonably demand a second one." Schwartz v. Pub. Adm'r, 24 NY 2d 65 - NY: Court of Appeals 1969 (internal citations omitted). In other words, once the matter has been heard by a court of competent jurisdiction once, it cannot be heard again.

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Customer: replied 3 years ago.

I'm sorry I did not explain all the facts:


 


The City Manager decides, each and every year, which roads to pave. In 2013 he decided NOT to pave my road. Now, I can initiate an Art. 78 proceeding within 4 months. I did not do that.


 


In 2014, he will probably decide NOT to pave my road again (he will claim again, that the road is private, but his reason is irrelevant). Since I did not initiate an Art 78 proceeding in 2013, the issue has never been decided. So, res judicata should not apply.


 


But even if I brought and lost an Art 78 action in 2013, 2014 is a different year. Although the road is the same, its condition is different. And, other criteria the City Mgr uses to decide whether to pave a particular road, are different (e.g. the condition of all other roads, whether the City has "extra" money in 2014). So, it's a different decision and again, res judicata should not apply.


 


True on both counts?

Ah, thank you for your clarification.

Although the road is the same, its condition is different.

Then if the material facts are different, then res judiciata does not apply... ARGUABLY. In the end, it is a subjective matter.

If one challenges the decision and the City Manager moves to dismiss via res judicata, it is up to the COURT to decide if the facts have materially changed to warrant a new suit or not.

So it is a subjective matter. While you can argue that res judicata does not apply (different material facts), the City Manager can argue it does (relatively same facts). It is up to the Judge, and I cannot predict this, I am afraid.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 3 years ago.

Great answer. One more follow-up question.


 


If no one has ever challenged (in court) the City Mgr's decision for any year, the issue has never been litigated by a party. Therefore, that party has NOT had a full opportunity to litigate this particular issue.


 


So, res judicata should not even be a "colorable" defense. Right?

Great answer. One more follow-up question.

Thank you and by all means.

If no one has ever challenged (in court) the City Mgr's decision for any year, the issue has never been litigated by a party. Therefore, that party has NOT had a full opportunity to litigate this particular issue. So, res judicata should not even be a "colorable" defense. Right?

Correct. If the decision has never been challenged before, then res judicata cannot apply.

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